Karim Dar vs Financial Commissioner and another

(1) This writ petition must be allowed on the short point that the impugned order is without jurisdiction.

(2) The facts leading up co this petition are these : One Sultan Dar died leaving surviving three sons Gwashi, Wahab and Rahim. His landed

property was mutated in the name of his three sons in equal shares. Subsequently Gwashi died and his 1/3rd share was mutated in the name of his

son Samad Dar, respondent No 2 here. Thereafter Wahab also died, Being issueless, his l/3rd share was mutated in the name of his brother,

Rahim. Thus Rahim came to have 2/3rd share of the landed property left by Sultan while 1/3 was owned by Samad Dar. Following the death of

Rahim his 2/3rd share was mutated in the name of his son, Karim Dar, petitioner here. All these mutations were effected in the year 1977 Bk and

before. The landed property so owned by the parties is situated in Shah Gund, Tehsil Sonwari. In the year 1962 A. D the State Legislature

enacted what is styled as the Jammu and Kashmir consolidation of Holdings Act, 1962. The Act was designed to effect consolidation of holdings

in the areas brought under its purview and to provide for the determination of the disputes incidental thereof. Sometime after of this Act. Tehsil

Sonwari was brought under the purview of this Act. During the course of the Consolidation operations, the petitioner, Karim Dar, made an

application before the Consolidation Officer concerned saying that he was not in possession of full 2/3 share owned by him adding that it was so

because his coowner Samad Dar, respondent here, held more than 1/3rd entered in his name. He prayed that the excess land held by Samad Dar

be restored into his possession. Alongside Samad Dar made an application alleging that he was entitled to 1/2 share of the land as against l/3rd

entered in the records and possessed by him and prayed that the records be corrected accordingly. By his order dated 13111967, the

Consolidation Officer dismissed the application of the petitioner and allowed that made by the respondent. Aggrieved by this order the petitioner

Karim Dar filed a Revision petition before the Director of Consolidation who allowed the same and remanded the case for fresh inquiry to the

Settlement Officer By his order dated 1161969, the Settlement Officer repeated the order made earlier by the Consolidation Officer. Against this

order the petitioner tiled an appeal before the Director of Consolidation on 2661969. As no appeal lay under the Act against the order of the

Settlement Officer, the Director of Consolidation ordered the appeal to be treated as a revision petition; called for the record and directed notice

to issue to the other party. The other party appeared and the record too was received. Thereafter the case was adjourned several times for hearing

the arguments and was still pending when the Consolidation of Holding Act was amended by Act No. XXVI of 1969 which came into force on

13101969. Under the amending Act powers of revision, heretofore exercised by Director of Consolidation, were given to the Financial

Commissioner while the Director of Consolidation was vested with power to hear appeals against orders passed on appeal by the Settlement

Officer. In view of this amendment the revision petition pending between the parties before the Director of Consolidation came to be heard by the

Financial Commissioner under circumstances about which the record is not clear. The Financial Commissioner upheld the order of the Settlement

Officer dated 1161969 and dismissed the revision petition on 181970. It is against this order that the petitioner has filed this writ petition

(3) In Om Prakash v. Mod Lal and others (A. I. R. 1958 All. 409) section 25 of the U. P. Small Causes Court Act gave power to the High Court

to hear revisions against the orders passed by the court of Small Causes. This section was amended by U. P. Act 17 of 1957 whereby the

jurisdiction conferred on the High Court to hear revisions was transferred to the District Court. The amending Act came into force on 4th June,

1957. The question arose : in what way were the application and revisions filed in the High Court under section 25 of the Provincial Small Causes

Court Act prior to 4th June, 1957 affected by the substitution of a new section 25 for that section by the U. P. Act 17 of 1957. Dealing with this

question the court held that by virtue of the provisions of section 6 (b) of the U. P. General Clauses Act, the High Court continued to have

jurisdiction to hear applications and revisions filed before it prior to 4th June in all cases in which prior to that date the court had directed the

record to be called f jr. The reasoning given was that the act of the court calling for the record was a ''thing duly one"" within the meaning of clause

(b) of section 6 U P, General Clause Act and could not be affected in the absence of any express provision to the contrary. I am in full agreement

with the law as laid down in this authority.

(4) In the present case the Director of Consolidation had called for the records and directed notice to issue to other side long before the amending

Act came into force In fact the record was received and the other side had put in his appearance long before the amending Act came into force.

There is nothing in the Amending Act to show that the revision petition pending before the Director of Consolidation on the date the said Act came

into force, shall stand transferred to the Financial Commissioner. On the authority of the decision cited above the Director of Consolidation

therefore retained the power to hear and dispose of the revision petition pending between the parties in the present case as section 6 (b) of our

General Clause is couched in terms identical with that of section 6 (b) of the U. P, General Clause Act. That being so, the Financial Commissioner

had no jurisdiction to hear and dispose of the said revision petition. The orders passed by him on the revision petition on 181970 are therefore

without jurisdiction, In this view this writ petition must succeed and the order of the Financial Commissioner must be set aside.

(5) I, therefore, allow this writ petition, set aside the order passed by the Financial Commissioner on 181970 and direct that the revision petition

covered by that order be sent to the Director of Consolidation for hearing and disposal in accordance with law. The parries are directed to appear

before the Director of Consolidation on 10 December, 1974.